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April 26, 2007

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Yeah, oppression of the First Peoples is truly ludicrous. I have good friends from SoDak, and the description of the law is, and I quote, "Birmingham in '65." White man drunk drives and kills pedestrian Native woman. Penalty: Six months. Six months in jail, seems kind of light for manslaughter. Oh, wait, not six months in jail. Six months without his license. No jail time. None.
Read On the Rez for a general overview of how fucked the reservation system is. If genocide is murder (by ethnicity) on a large scale, it's like negligent manslaughter (by ethnicity) on a large scale.

Though I love Ian Frazier's book (and it seems to me that the only way to make any sense of the situation that Native Americans find themselves in is thru someone with such a keen sense of the absurd as Frazier) I don't think that it really gives a good overview of the problems of the reservation (and note, Frazier is mainly talking about the Pine Ridge reservation, and reservations are like Tolstoy's point about unhappy families in that they are each screwed up in their own way)

For more incandescently angry writing, one might go to Deloria, esp. Custer Died for your sins. Since we have a large number of lawyers here, there might be some interest in Sayer's Ghost Dancing the Law, about the Wounded Knee Trials.

This is not to disagree with Joe Thomas' main point, and mass negligent manslaughter is a good descriptor.

As far as I can tell, the case that established this peculiar principle, Oliphant v. Suquamish Indian Tribe, wasn't based on positive law, but on the absence of any explicit provision, combined with various treaties, etc., that led the Court to assume that Congress must have assumed that tribes lack jurisdiction over non-members.

Do you think it's a 'peculiar principle' for American citizens to be tried by a jury of their peers?

Part of the decision in Oliphant v. Suquamish Indian Tribe which found that Indian tribal courts don't have criminal jurisdiction to try and/or punish non-Indians was based on the fact that non-Indians were excluded from Suquamish tribal court juries. Only Indians were allowed to serve on Suquamish juries.

Even if you're a non-Indian who has lived on a reservation your whole life, you aren't allowed to serve on a jury there. Only tribal members can do that. And to be a tribal member you have to have a certain percentage of 'Indian Blood.' In other words, tribal juries are racist in composition -- Indians allowed, other 'races' verboten.

Look at it this way: If an American Citizen robs or shoots a Russian diplomat in his office (technically sovereign soil) should the Russians be able to try him and hang him in the vestibule?

The point that tribal rolls are determined by blood is true, but the whole concept was imposed upon Native Americans as the determinative factor by the US government in the treaties and are enforced by a web of legal decisions, so the impression I get that you are blaming 'Indians' for racism falls short of the mark. In addition, the 1978 decision in Oliphant v. Suquamish tribe relied on an 1834 report(!) by the commisioner of Indian Affairs to support the notion that Indian reservations were "without laws" which allowed the Supreme Court to substitute its own interpretation for that of the Suquamish tribe, so I tend to disagree with what I take is your argument that the Supreme Court simply operated from the extension of logic. In fact, at any given time, there are any number of people who are not permitted to serve on juries, so the argument that whites are being deprived of some right which forces the Supreme Court to trample on their treaty guaranteed sovereign rights is a bit dubious to (IA)NAL me.

Perhaps this is a case of when they _really_ stand up, we can begin to stand down...

a very complex area of the law, in which the US is supposed to treat reservations as, essentially, foreign countries and yet, at the same time, recognize the US's trust relationship with tribal members and assets.

google indian trust litigation for an example of how the fed govt, including the Clinton admin, utterly scr*wed over individual Indians with regard to certain assets, including oil and gas leases, held in trust by the US.

a very complex area of the law

And this is an understatement. The US Constitution doesn't really provide a viable role for Native polities, and there's no simple answer to a number of the legal issues. And the social side is worse.

Some things aren't that complicated, though. I'll never forgive Bill Clinton for failing to pardon Leonard Peltier.

the only shelter on the Standing Rock Sioux Reservation, which includes 2.3 million acres in North and South Dakota

How many people live on the reservation?

Nell: around nine thousand. Nine thousand with very high rates of sexual assault and domestic violence and few other available support services nearby, though.

Look at it this way: If an American Citizen robs or shoots a Russian diplomat in his office (technically sovereign soil) should the Russians be able to try him and hang him in the vestibule?

Well, yes. That's exactly what "sovereign soil" means. I'd probably prefer it if they didn't, of course, but to assert that they don't have the right to do so is to say that American law trumps all other law even in other countries, which is just one step shy of national sociopathy.

...American law trumps all other law even in other countries, which is just one step shy of national sociopathy

This principle is pretty close to the actual interpretation of the law by some conservatives.

I read this as I about to go visit a native american friend whose long, fucked up life of sexual and physical abuse has turned her into a 450 pound wreck attached to an oxygen cannister when only a little over fifty. Once upon a time, despite a horrific childhood, this woman was a native rights activist. But it was the rapes when she was disabled after an auto accident that began what I suspect is the long final spiral...

This is an urban Indian -- folks bring it all with them to the city and it mixes and matches wth other poor peoples' suffering.

Anarch: Well, yes. That's exactly what "sovereign soil" means. I'd probably prefer it if they didn't, of course, but to assert that they don't have the right to do so is to say that American law trumps all other law even in other countries, which is just one step shy of national sociopathy.

So I can put you down for being in favor of decisive military action during the (first) Iranian hostage crisis? That is where I was BTW – do something, anything, OK, not that…

So I can put you down for being in favor of decisive military action during the (first) Iranian hostage crisis?

I think that we had the right to engage in military action, yes. Whether or not this was the wisest course of action is a question I can't really answer since I've never studied the subject.

Anarch: "Well, yes. That's exactly what "sovereign soil" means."

Well, not exactly. Although diplomatic missions are supposed to be inviolable – meaning host country police aren’t allowed to enter without permission (Iran violated it without much punishment) but diplomatic missions and consular properties are not actual extensions of their native countries. The “sending state’s” laws don't operate within diplomatic premises. For instance, embassies have to comply with local fire, and building, and environmental safety codes.

Anarch: Thanks. Good answer.

By the way: dKos has raised $6561.26 for Pretty Woman Bird House since yesterday. This is wonderful.

Somehow, I think having the Squamish courthouse complying with building codes and refusing their right of jurisdiction over a crime committed on their territory are two different things...

liberal japonicus says:

In fact, at any given time, there are any number of people who are not permitted to serve on juries

Any of those excluded from American juries because of their blood-quantum?

... so the argument that whites are being deprived of some right which forces the Supreme Court to trample on their treaty guaranteed sovereign rights is a bit dubious to (IA)NAL me.

Well, it's not only 'whites' who are excluded. Tribal juries exclude Blacks, Asians, and Hispanics too. But the real problem isn't who gets to sit on an Indian jury: it's the anachronistically obtuse fact tribal sovereignty still exists in the 21st century.

"One in three Native American women will be raped at some point in their lives..."

I cannot get over this very first line.
As a woman it angers me. As a white, it sickens me. Are white men in the areas raised to know that they can do this to Native American Women and nothing will happen to them?

I bet IF every time it happened, one in three Native American Women took a gun and blasted the man, there would quickly be an FBI/police response.

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